PEOPLE v. JUSUFOV (2025)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Heidi C. Cesare, J.), imposed October 27, 2022, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

Under the totality of the circumstances, the record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Downing, 233 A.D.3d 965, 966, 222 N.Y.S.3d 671).  Although it would have been better practice for the Supreme Court to discuss with the defendant the waiver of his appellate rights before obtaining an admission of guilt (see People v. Powell, 233 A.D.3d 898, 898, 222 N.Y.S.3d 179), the record reflects that the defendant was made aware of the People's demand for an appeal waiver before he agreed to plead guilty, and the defendant acknowledged that he had discussed the appeal waiver with his attorney (see People v. Howard, 240 A.D.3d 513, 237 N.Y.S.3d 675;  People v. Morao, 238 A.D.3d 1175, 1175, 232 N.Y.S.3d 247;  People v. Callejo, 237 A.D.3d 1218, 1218, 231 N.Y.S.3d 628).  Contrary to the defendant's contention, under the circumstances presented, the court's delay in explaining the appeal waiver until after the defendant's factual allocution of the crime did not render the appeal waiver invalid (see People v. Garcia, 237 A.D.3d 1222, 1223, 231 N.Y.S.3d 625;  People v. Francois, 235 A.D.3d 657, 657, 225 N.Y.S.3d 381).  The defendant's valid waiver of his right to appeal precludes appellate review of his contention that his sentence was excessive (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Ricottilli, 235 A.D.3d 1013, 1014, 227 N.Y.S.3d 718).

DUFFY, J.P., CHAMBERS, FORD, TAYLOR and MCCORMACK, JJ., concur.